Gia M.,1 Complainant,v.Eric D. Hargan, Acting Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity Commission

Jan 19, 2018

0120171872 (E.E.O.C. Jan. 19, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Gia M.,1
Complainant,

v.

Eric D. Hargan,
Acting Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.

Appeal No. 0120171872

Agency No. HHS-IHS-0067-2015

DISMISSAL OF APPEAL

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision, dated February 21, 2017, concerning her
complaint of unlawful employment discrimination. In her complaint, Complainant alleged
discrimination based on race, national origin, and sex when she was subjected to harassment
from May 2014, to November 18, 2014. EEOC Regulation 29 C.F.R. § 1614.402 provides that
appeals to the Commission must be filed within 30 calendar days after complainants receive
notice of the Agency’s decision.

The record indicates that Complainant’s then attorney was issued the Agency’s final decision on
February 24, 2017. Complainant does not dispute this. Because Complainant was represented
by an attorney at the time of the issuance of the Agency decision, Complainant’s time period for
filing an appeal began upon receipt of the Agency decision by her attorney. See 29 C.F.R.
§1614.605(d). Complainant filed her appeal postmarked May 2, 2017, which was well after the
30-day time limit set by the regulations. The record reveals that the Agency’s decision explicitly
informed Complainant of the time limits on her right to appeal. Upon review, we find that
Complainant fails to provide adequate justification to invoke waiver or equitable tolling for filing
the appeal.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Accordingly, the appeal is DISMISSED as untimely pursuant to 29 C.F.R. § 1614.403(c).

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title.
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Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work.
If you file a request to reconsider and also file a civil action, filing a civil action will terminate
the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

January 19, 2018
Date